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1. By this order I propose to dispose of two connected petitions being OMP Nos. 251/2005 and 320/2005. Parties in both the petitions are same. Dispute relates to a sub-contract agreement dated 5.2.2005 entered into between the parties under which the petitioner undertook to carry out "trenching and burial activities, laying of 48' 14" pipe line from refinery end up to shore and to maximum of 1000 meters trenching depth of approximate 4.5 meters and width as required by client up to maximum bottom width of 25 meter of two sections of not exceeding 15 meter for each pipe including hydrographic survey, shore trenching, intertidal zone trenching including waiting charges of dredger "Kamal- XXX" for burial activities beyond total demployment of 40 days for all equipment as specified in letter No. JS-ML-2005 dated 11th January 2005. The main contract between the respondent and IOCL was entered into on 16.12.2004 at New Delhi where the respondent had undertaken to execute the work of Engineering, construction and laying of 48 dia. 19.75 km long crude oil submarine and onshore pipeline from shore to SPM location, installation of pipeline end manifold (PLEM) and CALM type single point mooring system (SPM), testing and commissioning of the complete system and design, supply, construction, installation, testing of 14 dia. 5.70 km long effluent disposal pipeline system including diffuser at Paradip (Orissa). The said sub-contract dated 5.2.2005 between the parties was part of prime contract entered into between the IOCL and respondent on 16.12.2004. Respondent is an Iranian company. Vide letter dated 3.1.2004 (Annexure-A page 10 of the paper book) one M/s. Mokul International Limited stating to be the Indian associate of respondent invited offer from the petitioner to carry out the said job. The total value of the work to be done was US $ 25 lakh (Annexure-B page 11 of the paper book). In reply thereto the petitioner sent their proposal dated 11.1.2005. The proposal was accepted by the respondent vide their letter dated 12.1.2005 (Annexure-C page 15 of the paper book) wherein a payment schedule was also given. The petitioner then sent a signed and stamped memo of agreement dated 14.1.2005 (Annexure-D, E page 17 & 18 of the paper book) which was duly signed between the parties on 5.2.2005. On 22.2.2005 petitioner informed the respondent about the arrival of dredger/associated crafts at Paradip port (Annexure F page 24 of the paper book). This was acknowledged by the respondent vide its letter dated 9.3.2005 ( Annexure-G page 25) which contains a request to start the job immediately. On 15.3.2005 the petitioner sent its invoice (Annexure-H page 27 of the paper book) for transfer of US $ 7 lakh to the petitioner's account in Punjab National Bank (PNB), Kandla Free Trade Zone Branch. On 4.4.2005 petitioner sent its another invoice for US $ 9 lakh (Annexure-I page 28 of the paper book). These invoices were sent as per the payment schedule agreed upon between the parties. On 12.4.2005 parties signed statement of facts regarding work done (Annexure-J page 29 of the paper book). Item No. 12 of this document specifically mentions that dredging of trench has been completed on 11th April 2005 as per dredging plan profile. This document is signed by both the parties. On receipt of two invoices, one for US $ 7 lakh and another for US $ 9 lakh, respondent wrote a letter dated 13.4.2005 (Annexure-K page 30 of the paper book) informing the petitioner that their invoices have been accepted and are under process for payment. It was further assured to the petitioner that the payment will be released by the end of month. This was repeated in the respondent's another letter dated 13.4.2005 (Annexure-K page 31 of the paper book). Through this letter the respondent informed the petitioner that due to some unexpected situation in the project there is delay in payment by IOCL and the invoices will be paid by the next week. Petitioner sent its third invoice for US$ 5,50,000/- dated 1.5.2005( Annexure-M page 33 of the paper book) and last invoice dated 1.5.2005 for US $ 1,37,925 (Annexure-M (colly) page 34 of the paper book). When no payment was forth coming, a notice dated 6.7.2005 (Annexure-N page 35 of the paper book) was sent by the petitioner to the respondent reminding that balance payment of US$ 18,87,825 is still outstanding against the respondent and called upon them to clear the same in terms of letter of intent dated 11.1.2005 and subcontract dated 5.2.2005 failing which petitioner will take appropriate legal action. Respondent then wrote a letter dated 12.7.2005 reiterating that they are facing difficulty in getting the payments from IOCL. The petitioner did not receive any payment despite legal notice hence this petition.

11. Coming to the merits of the case, the petitioner claims to have completed the work as per sub-contract dated 5.2.2005 whereas according to the respondent only 36% work assigned to the petitioner was carried out. The respondent relied on IOCL's report dated 14.6.2005 for this purpose. It is the contention of the learned Counsel for the respondent that the petitioner has trenched only off shore area but has not dredged on shore area which is approx. 700 meter long and no back filling has been done. On the other hand, learned Counsel for the petitioner relied upon document dated 12.4.2005 (Annexure-J page 29 of the paper book) which is signed by both the parties. This document contains statement of facts regarding the trenching/dredging work done by the petitioner at Paradip IOCL SPM line project. At item 12 it clearly mentions completed dredging of trench on 11th April 2005 as per dredging plan profile. Vide this document which is signed by the respondent's representative, the respondent admits the fact that the petitioner has completed the dredging of trench as per dredging plan profile. This inference is further re-enforced from respondent's letter dated 13.4.2005. Even in their letter dated 12.7.2005 in response to the petitioner's legal notice, the respondent did not dispute the extent of work done by the petitioner. They only pleaded helplessness in the matter because they were having some problems with IOCL in the matter of payment of invoices. Thus the petitioner's version that he has completed the dredging of trench as per dredging plan profile stands admitted by the respondent vide letter dated 12.4.2005. It is contended on behalf of the respondent that the document dated 12.4.2005 relates only to the work done in the off shore area but the petitioner has not dredged on shore area which is approx. 700 meters. This is not borne out of from the document itself. It no where shown that it relates only to off shore area. At this stage when this Court has to take only a prima facie view of material on record, I think, that the writing dated 12.4.2005 signed between the parties, is sufficient to hold prima facie that the work has been completed as per dredging plan profile.